Smallwood [2018] EWCA Crim 2022
Summary
R v Smallwood [2018] EWCA Crim 2022 concerned an appeal by the Solicitor General under section 36 of the Criminal Justice Act 1988 against a suspended sentence imposed for an offence of causing grievous bodily harm with intent, which the Court of Appeal (Lord Justice McCombe, Holgate J and Mrs Justice O’Farrell) found to be unduly lenient and accordingly increased.
Mr Smallwood, then aged 22, was convicted after trial of an offence contrary to section 18 of the Offences against the Person Act 1861. On 22 June 2018 Her Honour Judge Waddicor sentenced him at Lewes Crown Court to 24 months’ imprisonment suspended for 24 months with a 180-hour unpaid work requirement and a twenty-day rehabilitation activity requirement. The Solicitor General applied for leave to refer the sentence as unduly lenient, which the court granted.
On 23 January 2016 at about 1.45 in the morning Mr Luke Addison and Miss Millie Bolingbrook were walking through central Brighton when they encountered Mr Smallwood by chance. Miss Bolingbrook and the offender were formerly in a relationship. Mr Smallwood approached Mr Addison and instigated a fight, punching him to the floor. While Mr Addison lay prone on the ground Mr Smallwood kicked him to the head three times. Witnesses described the kicks as resembling a rugby conversion, with the offender taking a few steps back before each kick. Mr Smallwood then ran away and went to a nightclub. Mr Addison was rendered unconscious and taken to hospital. He suffered a laceration under his left eye requiring 18 stitches, a laceration above his left eyebrow requiring gluing, cuts and grazes to his left elbow, a bruised ear and a bruised head. When reviewed six weeks later he was still experiencing numbness to the left side of his face due to nerve damage, which persisted for three months. He remained permanently scarred to a very visible part of his face. Mr Addison had no recollection of the incident. Mr Smallwood continued to deny kicking the victim notwithstanding clear eyewitness evidence to the contrary.
Mr Smallwood had no previous convictions. He was working as a self-employed gas and heating engineer at the time and had a good employment record. He came from a good family background and numerous testimonials to his positive good character, including references to charitable work, were placed before the court. A pre-sentence report assessed him as presenting a low risk of re-offending but a medium risk of serious harm to male members of the public. He told the author that prior to the incident he had consumed some six or seven pints of beer and two measures of bourbon whisky. A supplemental probation report indicated he had completed some 22 and a half hours of unpaid work pursuant to the suspended sentence order but had difficulty completing more due to work commitments. The Probation Service had been unable to carry out any significant rehabilitation work for the same reason. The report referred to his distress at learning of the reference and expressed concern about his vulnerability in custody.
At the sentencing hearing the Crown submitted that the offence fell within Category 1 of the Sentencing Council guideline for section 18 offences, involving greater harm and higher culpability by reason of the use of a shod foot, which the guideline and longstanding case law equate with the use of a weapon. The defence submitted that the offence was one of lesser harm and lower culpability, arguing that kicking while wearing trainers was not the sort of shod foot attack at which the guideline was directed. The learned judge concluded that it was a Category 2 case involving lesser harm but higher culpability. She found that although the injury was necessarily serious by the nature of the offence, it was not serious in the context of such offences, which covered offending down to one step below murder and manslaughter. She found that the guideline drew no distinction between types of footwear and that there had been three kicks. The judge correctly identified the starting point of six years’ custody and the sentencing range of five to nine years’ custody for Category 2, stating expressly that she ought to sentence with a starting point of six years.
The judge noted the mitigation, particularly the offender’s age, observing that the approach to sentencing a 45-year-old would be different, and the many character references. She stated that the offence crossed the custody threshold on any view and that she should be sentencing him to at least four years’ custody, even that being below the guideline range, which could be reduced from the starting point of six years to four to take account of his age. She explained that to suspend a prison sentence she could not impose more than two years and that she should lock him up immediately but was not going to do so. She said she was departing from the guidelines because of his age, his impressive track record in terms of work, the voluntary work he had done (though acknowledging a cynic might say he started it after the incident to make himself look good), and his stable employment. She stated that the real reason for not abiding by the guidelines was her view that there was a risk that if he went to prison it would make a bad start even worse, that he would mix with people in prison for a variety of reasons, would regard it as hopeless and would have to climb out of it, whereas he could do something now to make amends for an offence she regarded as out of character.
The Solicitor General submitted that this approach was unduly lenient and referred the court to section 125 of the Coroners and Justice Act 2009, which requires every court to follow relevant sentencing guidelines unless satisfied that it would be contrary to the interests of justice to do so. While recognising the available mitigation, the Solicitor General noted aggravating features including that the offence was committed in a busy city centre at night, the ongoing effect on the victim and offending while under the influence of alcohol. He referred to Attorney General’s Reference (R v Ojo) [2018] 1 Cr App R (S) 88, which also concerned a Category 2 section 18 offence with lesser harm and higher culpability. In that case, involving an attack with a hammer and a shod foot, the offender was sentenced to three years’ imprisonment in the Crown Court but the sentence was increased to five years on reference by the law officers. Sharp LJ held that the strong personal mitigation in that case did not justify a sentence outside the guideline range and that matters of mitigation relevant to the personal circumstances of the offender and those of aggravation were more than capable of being accommodated by adjustment to the appropriate starting point within the guidelines. Mr Polnay submitted that it was wrong for the judge to find that it was not in the interests of justice to apply the guideline or that the mitigation made it appropriate to impose a sentence significantly below the guideline range, though he accepted that some reduction below the guideline range could be appropriate along the lines the judge had indicated before deciding to suspend the sentence.
Mr Cherrill for the offender submitted that sentencing is an art not a science. He argued that the judge was entitled to take into account conditions in Her Majesty’s Prisons and the offender’s youth. She knew he had acted out of jealousy, which went to the seriousness of the offence. It was an unpremeditated and impulsive attack wholly out of character by a young man in a stable relationship with a good work record. He submitted that the judge was entitled to a degree of autonomy which did not make it necessary that there should be wholesale contradiction of any merciful decision she might have taken.
The court concluded that the sentence was clearly unduly lenient. There is a statutory requirement for courts to apply the relevant guidelines save where it would be contrary to the interests of justice to do so, and to that extent the discretion to which Mr Cherrill referred is constrained. The court agreed with the Solicitor General that the judge was wrong to pass a sentence significantly below the Category 2 range. The court expressed no concluded view as to whether in another case an attack with kicks using, for example, a soft bedroom slipper would qualify as an assault with a weapon for the purpose of the guideline, but in this case, as the judge noted, there were three savage kicks resulting in significant injuries whatever the nature of the shoes. The court found the judge was quite correct to say the case fell clearly within Category 2. Having reached that conclusion, the court found it impossible to say that the sentence could have been reduced to a level at which suspension could be considered. The justice of the case within the parameters set by the Sentencing Council meant that the sentence had to be one of immediate custody. The court reminded itself that this was a vicious, unprovoked attack committed on the victim in a public place at night, fuelled by alcohol, with serious consequences for the victim, all of which the judge had spelt out very clearly.
The court agreed that a sentence not significantly below the guideline range would be justified. However, section 125 of the 2009 Act allowed the court to arrive at a slightly lower than guideline range, part sentence having regard to the sentence substituted in Ojo. There, for a rather more sustained attack with two weapons, the court substituted five years for the three years passed in the Crown Court. The guideline provided rather more flexibility from the six-year starting point in an upwards direction than in a downwards direction, the starting point being six years with a range of five to nine. Because of the youth of the offender and other mitigation cogently urged by Mr Cherrill, the court considered it would be contrary to the interests of justice to confine the sentence to the guideline range. The judge herself had considered that a reduction to four years’ imprisonment might be possible. The court agreed with that approach and also bore in mind the unpaid work already done by the offender under the original sentence. Taking all those factors into account, the court considered that a proper sentence was one of four years’ imprisonment, which it substituted for the suspended sentence of two years’ imprisonment imposed in the Crown Court.
In short, the Court of Appeal allowed the Solicitor General’s reference, finding that a suspended sentence for this serious, unprovoked and vicious section 18 offence fell significantly outside the appropriate guideline range and that immediate custody of four years was required, notwithstanding the strong personal mitigation.
Mr Smallwood, then aged 22, was convicted after trial of an offence contrary to section 18 of the Offences against the Person Act 1861. On 22 June 2018 Her Honour Judge Waddicor sentenced him at Lewes Crown Court to 24 months’ imprisonment suspended for 24 months with a 180-hour unpaid work requirement and a twenty-day rehabilitation activity requirement. The Solicitor General applied for leave to refer the sentence as unduly lenient, which the court granted.
On 23 January 2016 at about 1.45 in the morning Mr Luke Addison and Miss Millie Bolingbrook were walking through central Brighton when they encountered Mr Smallwood by chance. Miss Bolingbrook and the offender were formerly in a relationship. Mr Smallwood approached Mr Addison and instigated a fight, punching him to the floor. While Mr Addison lay prone on the ground Mr Smallwood kicked him to the head three times. Witnesses described the kicks as resembling a rugby conversion, with the offender taking a few steps back before each kick. Mr Smallwood then ran away and went to a nightclub. Mr Addison was rendered unconscious and taken to hospital. He suffered a laceration under his left eye requiring 18 stitches, a laceration above his left eyebrow requiring gluing, cuts and grazes to his left elbow, a bruised ear and a bruised head. When reviewed six weeks later he was still experiencing numbness to the left side of his face due to nerve damage, which persisted for three months. He remained permanently scarred to a very visible part of his face. Mr Addison had no recollection of the incident. Mr Smallwood continued to deny kicking the victim notwithstanding clear eyewitness evidence to the contrary.
Mr Smallwood had no previous convictions. He was working as a self-employed gas and heating engineer at the time and had a good employment record. He came from a good family background and numerous testimonials to his positive good character, including references to charitable work, were placed before the court. A pre-sentence report assessed him as presenting a low risk of re-offending but a medium risk of serious harm to male members of the public. He told the author that prior to the incident he had consumed some six or seven pints of beer and two measures of bourbon whisky. A supplemental probation report indicated he had completed some 22 and a half hours of unpaid work pursuant to the suspended sentence order but had difficulty completing more due to work commitments. The Probation Service had been unable to carry out any significant rehabilitation work for the same reason. The report referred to his distress at learning of the reference and expressed concern about his vulnerability in custody.
At the sentencing hearing the Crown submitted that the offence fell within Category 1 of the Sentencing Council guideline for section 18 offences, involving greater harm and higher culpability by reason of the use of a shod foot, which the guideline and longstanding case law equate with the use of a weapon. The defence submitted that the offence was one of lesser harm and lower culpability, arguing that kicking while wearing trainers was not the sort of shod foot attack at which the guideline was directed. The learned judge concluded that it was a Category 2 case involving lesser harm but higher culpability. She found that although the injury was necessarily serious by the nature of the offence, it was not serious in the context of such offences, which covered offending down to one step below murder and manslaughter. She found that the guideline drew no distinction between types of footwear and that there had been three kicks. The judge correctly identified the starting point of six years’ custody and the sentencing range of five to nine years’ custody for Category 2, stating expressly that she ought to sentence with a starting point of six years.
The judge noted the mitigation, particularly the offender’s age, observing that the approach to sentencing a 45-year-old would be different, and the many character references. She stated that the offence crossed the custody threshold on any view and that she should be sentencing him to at least four years’ custody, even that being below the guideline range, which could be reduced from the starting point of six years to four to take account of his age. She explained that to suspend a prison sentence she could not impose more than two years and that she should lock him up immediately but was not going to do so. She said she was departing from the guidelines because of his age, his impressive track record in terms of work, the voluntary work he had done (though acknowledging a cynic might say he started it after the incident to make himself look good), and his stable employment. She stated that the real reason for not abiding by the guidelines was her view that there was a risk that if he went to prison it would make a bad start even worse, that he would mix with people in prison for a variety of reasons, would regard it as hopeless and would have to climb out of it, whereas he could do something now to make amends for an offence she regarded as out of character.
The Solicitor General submitted that this approach was unduly lenient and referred the court to section 125 of the Coroners and Justice Act 2009, which requires every court to follow relevant sentencing guidelines unless satisfied that it would be contrary to the interests of justice to do so. While recognising the available mitigation, the Solicitor General noted aggravating features including that the offence was committed in a busy city centre at night, the ongoing effect on the victim and offending while under the influence of alcohol. He referred to Attorney General’s Reference (R v Ojo) [2018] 1 Cr App R (S) 88, which also concerned a Category 2 section 18 offence with lesser harm and higher culpability. In that case, involving an attack with a hammer and a shod foot, the offender was sentenced to three years’ imprisonment in the Crown Court but the sentence was increased to five years on reference by the law officers. Sharp LJ held that the strong personal mitigation in that case did not justify a sentence outside the guideline range and that matters of mitigation relevant to the personal circumstances of the offender and those of aggravation were more than capable of being accommodated by adjustment to the appropriate starting point within the guidelines. Mr Polnay submitted that it was wrong for the judge to find that it was not in the interests of justice to apply the guideline or that the mitigation made it appropriate to impose a sentence significantly below the guideline range, though he accepted that some reduction below the guideline range could be appropriate along the lines the judge had indicated before deciding to suspend the sentence.
Mr Cherrill for the offender submitted that sentencing is an art not a science. He argued that the judge was entitled to take into account conditions in Her Majesty’s Prisons and the offender’s youth. She knew he had acted out of jealousy, which went to the seriousness of the offence. It was an unpremeditated and impulsive attack wholly out of character by a young man in a stable relationship with a good work record. He submitted that the judge was entitled to a degree of autonomy which did not make it necessary that there should be wholesale contradiction of any merciful decision she might have taken.
The court concluded that the sentence was clearly unduly lenient. There is a statutory requirement for courts to apply the relevant guidelines save where it would be contrary to the interests of justice to do so, and to that extent the discretion to which Mr Cherrill referred is constrained. The court agreed with the Solicitor General that the judge was wrong to pass a sentence significantly below the Category 2 range. The court expressed no concluded view as to whether in another case an attack with kicks using, for example, a soft bedroom slipper would qualify as an assault with a weapon for the purpose of the guideline, but in this case, as the judge noted, there were three savage kicks resulting in significant injuries whatever the nature of the shoes. The court found the judge was quite correct to say the case fell clearly within Category 2. Having reached that conclusion, the court found it impossible to say that the sentence could have been reduced to a level at which suspension could be considered. The justice of the case within the parameters set by the Sentencing Council meant that the sentence had to be one of immediate custody. The court reminded itself that this was a vicious, unprovoked attack committed on the victim in a public place at night, fuelled by alcohol, with serious consequences for the victim, all of which the judge had spelt out very clearly.
The court agreed that a sentence not significantly below the guideline range would be justified. However, section 125 of the 2009 Act allowed the court to arrive at a slightly lower than guideline range, part sentence having regard to the sentence substituted in Ojo. There, for a rather more sustained attack with two weapons, the court substituted five years for the three years passed in the Crown Court. The guideline provided rather more flexibility from the six-year starting point in an upwards direction than in a downwards direction, the starting point being six years with a range of five to nine. Because of the youth of the offender and other mitigation cogently urged by Mr Cherrill, the court considered it would be contrary to the interests of justice to confine the sentence to the guideline range. The judge herself had considered that a reduction to four years’ imprisonment might be possible. The court agreed with that approach and also bore in mind the unpaid work already done by the offender under the original sentence. Taking all those factors into account, the court considered that a proper sentence was one of four years’ imprisonment, which it substituted for the suspended sentence of two years’ imprisonment imposed in the Crown Court.
In short, the Court of Appeal allowed the Solicitor General’s reference, finding that a suspended sentence for this serious, unprovoked and vicious section 18 offence fell significantly outside the appropriate guideline range and that immediate custody of four years was required, notwithstanding the strong personal mitigation.